Thursday, October 05, 2006

Justify or Retract

Duke alumni tell me they didn’t buy the administration’s story, widely peddled at Homecoming, of “we did just fine handling the lacrosse controversy.” Indeed, many report that they let administrators and trustees know their sentiments--perhaps explaining a bizarre item posted yesterday on the Duke Alumni Association’s website. Administration officials “suggest” to alumni some “key points” to answer any questions that others might have about Duke’s actions--but the remarks really seem to be directed at Duke alumni themselves.

One item particularly caught my eye:

Why hasn't the university -- the president and others -- spoken out against the district attorney and demanded that the charges be dropped when it is so clear the players are innocent?

Even though recent media accounts call into question many aspects of the case against the three players, neither the news media nor Duke has access to all the facts that may emerge in a trial. Within our democratic system, it is the role of the legal system - not of universities or others - to determine when it is appropriate to charge people and have trials. The district attorney and others with responsibility for this process have an obligation to act fairly and responsibly in pursuing the truth. If the planned trial does proceed, everyone will have an opportunity to finally see all of the evidence and assess whether it was appropriate for the district attorney to pursue the charges.

The Alumni Association’s “talking points” mirror Brodhead’s response to the open letter from Friends of Duke. The statement itself can only be characterized as willfully deceptive, on three separate levels:

the traditional relationship between universities and the legal system;

Brodhead’s own past actions;

the specifics of this case.

1.) The academy and the legal system

Under the terms of the “Brodhead Doctrine,” universities and academics must defer on legal matters, since “within our democratic system, it is the role of the legal system - not of universities or others - to determine when it is appropriate to charge people and have trials.”

This conception of the proper role of the academy no doubt would have surprised Harvard Law Professor and future Supreme Court Justice Felix Frankfurter, who rallied academics and the public by exposing the procedural abuses in the Sacco and Vanzetti case.

The Brodhead Doctrine likewise repudiates the legacy of a generation of courageous professors—and academic leaders—who denounced Southern prosecutors in the 1950s and early 1960s for regularly bringing trumped-up charges against African-American civil rights activists. Professors and their colleges, according to the Duke Alumni Association talking points, should have remained silent about such prosecutorial misconduct, at least until the conclusion of a trial and the inevitable convictions. Speaking out, alas, would have suggested a lack of faith that “the district attorney and others with responsibility for this process have an obligation to act fairly and responsibly in pursuing the truth.”

Who, exactly, do Duke Alumni Association officials hope to fool? These talking points were written for highly educated people: Duke graduates. Anyone smart enough to get a degree from Duke will be fully aware that professors and leaders of academic institutions have never adopted a blanket policy of refusing to comment when confronting procedural injustices. Indeed, the willingness of educators and educational institutions to speak out in such cases has been a hallmark of “our democratic system.”

2.) Brodhead’s past actions

If the Brodhead Doctrine mischaracterizes the history of higher education in the United States, it also—ironically—misrepresents Brodhead’s own personal history. On at least two occasions, the Duke president has intervened in the legal process to promote due process, acting at behest of his students.

Incident 1: In 2003, while still dean at Yale, Brodhead signed a letter to the New York Board of Parole urging the release of inmate Kathy Boudin, whose son, Chesa, was then a student at Yale. Chesa’s campaign to earn parole for his mother had become a cause célèbre among the radical left, although police union officials considered Boudin a “domestic terrorist.” (The former member of “Weather Underground” was serving a sentence of 20 years to life for felony murder and robbery.) “This case,” wrote Brodhead, “raises in a very deep way the question of rehabilitation, the question whether punishment and suffering can work a change that makes further punishment just vindictive.”

Incident 2: In 2005, a Duke graduate student in cultural anthropology, Yektan Turkyilmaz, was placed on trial in Armenia. The charges resulted from procedurally dubious conduct by Armenian authorities and seemed politically inspired: Turkyilmaz, a Turk, had been researching the Armenian genocide. In response, Brodhead wrote to the president of Armenia, asking him to intervene in the trial and urging him to release Turkyilmaz. As with Boudin, Turkyilmaz’s cause had powerful support from the campus left—in this case, Professor Orin Starn.

Once again, who, exactly, do Duke Alumni Association officials hope to fool? Duke graduates are fully capable of using the internet to learn about Brodhead’s actions in the Turkyilmaz and Boudin cases. Does the Brodhead Doctrine carry an exception allowing academics or leaders of academic institutions to intervene in the legal system for causes that are considered politically correct?

3.) The specifics of this case

As in Brodhead’s response to the Friends of Duke letter, the Duke Alumni Association talking points misrepresent the requests that have been made of university leaders. To my knowledge, the president has received few, if any, public requests that he “demand that the charges be dropped when it is so clear the players are innocent.” He has, however, received many requests that university officials publicly demand that local authorities treat Duke students according to the same procedures applied to all other Durham residents.

The Alumni Association’s response to such pleas: “If the planned trial does proceed, everyone will have an opportunity to finally see all of the evidence.” Of course, at least since Mapp v. Ohio, American jurisprudence has not operated under such premises: the exclusionary rule means that evidence obtained as a result of police or prosecutorial misconduct is never presented at trial.

The Nifongian “wait to the trial” refrain is becoming rather commonplace from high levels of the Duke administration. It appeared in Brodhead’s response to Friends of Duke. It is, apparently, a favorite argument of Board of Trustees chairman Robert Steel. And now, the Duke Alumni Association has offered it.

Duke officials should be made to justify their claim that material could come out at trial to disprove allegations that Mike Nifong has violated various procedures of either the city of Durham or the North Carolina Bar. And if Duke officials cannot offer evidence that could rationalize Nifong's conduct, they should retract their claim, and publicly demand that the district attorney apply to Duke students the same procedures that all other citizens of Durham receive.

Accordingly, I invite readers of this blog who attended Duke to email Duke Alumni Association president Tom Clark (whose email, according to the DAA website, is tcclark100@aol.com), with a cc to BOT chairman Robert Steel (whose email, according to the Duke website, is boardchair@duke.edu). I urge asking the following:

In light of repeated statements from administration and alumni officials that the university must wait until a trial to demand that the district attorney uphold the due process rights of all Duke students, could you please tell me what material could possibly appear at trial to disprove allegations that:

District Attorney Nifong violated Rule 3.8, comment 2, of the Rules of Professional Conduct, which states that “a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused,” when he refused to meet with Reade Seligmann’s attorney to consider Seligmann’s alibi evidence;

District Attorney Nifong violated Rule 3.8(f) of the Rules of Professional Conduct, which states that a prosecutor must “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused,” in his public relations spree of late March and early April.

I will post any replies that are received.

Rather than attempting to establish a “Brodhead Doctrine” that willfully distorts past events, it’s time for Brodhead and the Board of Trustees to come clean and admit the obvious: they fear the local reaction if Duke stands up for the due process rights of its students.

Such a statement would constitute an admission that over the last six months, Duke has pursued a cowardly, amoral policy. But at least it would restore a sense of honesty sorely lacking in recent comments about the case from the Duke administration.

If trials are so appropriate to have and so trustworthy, why was Brodhead hoping up and down when Turkyilmaz got arrested in Armenia and writing letters to the president of Armenia asking for a pardon instead of a trial? Why didn't he let the justice system work out? Because, he really did not want Tukyilmaz to be convicted, and he really wants these guys to be indicted. It is a simple as that. You do not need to be a rocket scientist to figure this out. Shame on you Brodhead, and shame on you Steel!

This travesty only continues because of you. By lifting your little finger, you could have stopped it, but you didn't. You must get a perverse pleasure from seeing these guys go to jail for a crime they did not commit, for 25 years. You must feel you are now a better man, a true friend of the AA community. I call that quite perverse...

It is utterly amazing to me that the Duke alumni is hosting a forum of reporters on the Duke lacrosse story, including those from The Chronicle, to address why rape allegations against team members became a top national story on class, race and crime. Do they not understand that three innocent men lives are hanging in the balance. Not to mention that the entire team was lied too and receive no support from the faculty or adminstration!!!

Wow. That alumni statement is special. For instance one of its questions is:

Why was the lacrosse program resumed?

The answer:

Lacrosse was reinstated only after the team made a group commitment to act responsibly and the district attorney had cleared from suspicion all of the players except the three under indictment.

Cleared from suspicion by the DA? I haven't read any such statement, which would be easy enough for Mr. Nifong to make: "Given these indictments, I clear the remaining players from any suspicion of involvement."

But such a statement wouldn't make sense. If, as Nifong says, he believes the rape occurred, then either:

--The 3 indicted men are guilty, in which case many of the other partiers are co-conspirators (facilitating the alleged victim being brought to the bathroom, lying about the evening, participating in a "code of silence;"

or

-- The 3 indicted men are not guilty, in which case three other lacrosse team members were the rapists.

President Brodhead must either withdraw the statement, or cancel the 2006/07 lacrosse season.

As an alum, I am offended that I am being told what to say- to sell the "company line." Why are Duke professors not being fed these same responses. Why are they allowed to so openly speak out against the student-athletes and Duke Athletics? Why is the administration encouraging free speech for professors yet suggesting to alumni what to say?

It is sad that the Duke administration doesn't see the whole picture. This is affecting all of the current students right now. I have been told that Duke students have the highest ratio and probability of any other group of students in the countryto be arrested by the corrupt group of police down in Durham. Something to be quite proud of. Until President Broadhead and co. can get things under control down there it is only getting worse by the day. Check with the da's office and you can see for yourself.

here is a way for the ordinary alum to make a statement with power - $$$. no, your average alum will not likely give so much to make a difference in and of itself. however, as i have mentioned previously on this blog, broadhead is first and foremost judged on his fundraising ability. when the inevitable fundraising letter comes from the alumni development office, respond accordingly. a simple statement laying out your position as to the president's (or others) actions (or inactions) followed by a statement that you will not give a dime until this is handled properly.

one will make little difference, you might say? untrue. not only is $$$ a huge factor in ultimate analysis of the prez's job, but the percentage of alum's giving is also huge. both severely affect his job as well as the us news rankings, as ridiculous as they are.

trust me - $$ talks at duke as at any university, as does the alumni participation. do not underestimate the power of an alum's pocketbook.

I agree with your premise that if someone makes a statement which he cannot justify, he should retract the statement. Along those lines, I remember that a couple of weeks ago, you posted a lengthy message from one of the LAX team parents which selectively quoted from and deliberately mischaracterized a statement issued by President Brodhead about the LAX situation on March 25. This was a significant act of intellectual dishonesty on the part of the LAX team parent. However, I have not noticed you or the LAX team parent retracting the mischaracterization. Did I miss something? Perhaps you could provide all of us with a link to the retraction.

Apparently, these talking points were developed for alumni who are interviewing applicants in case they are asked these questions during their interviews. Is that true Mr. Johnson? Is there a reason why you did not mention that fact? Is there a reason why you misled your readers into thinking it "directed at" alumni in general? Is there a reason why you so often neglect to contextualize your accusations, particularly against anything related to Duke? What is your agenda Mr. Johnson? No, I mean your true agenda.

To the 3.50am:The "talking points" link is here:http://www.dukealumni.com/__page/10036878.100.6.aspx

It is on the Duke alumni association website, not a website confined to alumni who interview students. Also, its text contains not even one reference that it was intended solely or even primarily for this purpose. Of course, you might have inside information not available to me.

To the 2.41am: My policy is to issue corrections when factual errors are pointed out. If you care to point out a factual error, I will print a retraction. An anonymous poster issuing an opinion about Brodhead's text doesn't, I'm afraid, reach the threshold for running a correction.

You say that an anonymous poster issuing an opinion about Brodhead’s text does not reach the threshold for running a correction. Wow, what a lucky break for all of those posters who want to smear President Brodhead. In effect, you are giving them free license to selectively quote from and mischaracterize his statements and falsely smear him without ever being accountable for anything they say. So, just to make sure that I understand your analysis correctly, I gather that when a member of the local or national media (Ruth Sheehan, Nancy Grace, etc.) expresses the opinion that the LAX players are guilty of rape, that falls into the category of opinions that reach the threshold for running a correction, but when an LAX team parent expresses the opinion that President Brodhead has thrown the LAX players to the wolves and all but declared them to be guilty of rape and then tries to support that opinion by selectively quoting from and distorting his statements, that falls into a very different category of opinions which do not reach the threshold for running a correction. What a joke. As I said in another post, some of the commentary on this website is so one-sided and over-the-top that the entire website is starting to lose credibility.

You appear to have misinterpreted my comment: I apologize if I was not clear.

You contend, "You are giving them free license to selectively quote from and mischaracterize his statements and falsely smear him without ever being accountable for anything they say."

You're certainly entitled to that opinion. But, on this blog at least, I run corrections regarding errors of fact--not because an anonymous commenter doesn't like an opinion somebody else expresses. You haven't pointed out any errors of fact in the post. I urge you to do so if you know of any.

The error of fact, really not just an error of fact but more of a deliberate fraud, is that the LAX team parent selectively quoted from the statement issued by President Brodhead on March 25 and thus did not give your audience a factually correct account of the statement. As you know, selective quotation is a device used by people who are intellectually dishonest in order to distort and mischaracterize the words of another person. In this case, there can be no doubt that the LAX team parent used the device of selective quotation in a deliberate attempt to distort the meaning of President Brodhead’s statement as the sentences that he failed to quote directly contradict the interpretation that he then tries to give to the statement. I hope you are not suggesting that selective quotation is a permissible practice on your website as that would lead to significant questions about the credibility of what is being posted here.

I am trying to be clear, but apparently am failing. So I'll try one more time. You write, "the LAX team parent selectively quoted from the statement issued by President Brodhead on March 25 and thus did not give your audience a factually correct account of the statement." Of course, all quotations are "selective": one rarely quotes the entire text of anyone's speech. It is, however, unfair to take quotes out of context.

You have provided no evidence of "selective quotation"; instead, you simply assert that the quotation was selective. It's rather hard to see how I can run a correction because an anonymous commenter believes that a lax parent made a "selective quotation" but won't provide specific demonstrations of how the quotation was selective. I'm happy to consider any specific points that you want to make, but I am unaware of any newspaper in the country that would run a 'correction' based on an unsubstantiated, anonymously expressed opinion.

You printed the message from the LAX team parent on the main page of your website on September 15, and I posted a comment that discussed the selective quotation issue in the comment section of that same page.

The statement issued by President Brodhead on March 25 reads as follows:

QUOTE

Physical coercion and sexual assault are unacceptable in any setting and have no place at Duke. The criminal allegations against three members of our men’s lacrosse team, if verified, will warrant very serious penalties. The facts are not yet established, however, and there are very different versions of the central events. No charges have been filed, and in our system of law, people are presumed innocent until proven guilty. We also know that many members of the team, including some who were asked to provide DNA samples, did not attend the party.

I urge everyone to cooperate to the fullest with the police inquiry while we wait to learn the truth.

Whatever that inquiry may show, it is already clear that many students acted in a manner inappropriate to a Duke team member in participating in the March 13 party. I applaud Athletics Director Joe Alleva for responding to the conduct that is not in question even as we wait for the investigation to determine the truth about disputed parts of the events.

END QUOTE

In the message that he sent to you which you posted on your website, the LAX team parent states that with this statement, Brodhead turned his back on his students, threw them to the wolves, and all but declared them to be guilty of rape. The question is how did he get to this conclusion? The answer is that he got there by selectively quoting only the first and second sentences of paragraph one of the statement and the single sentence of paragraph two of the statement while ignoring the third, fourth, and fifth sentences of paragraph one in which Brodhead expressly states that (1) the facts are not yet established; (2) there are very different versions of the central events; (3) no charges have been filed; (4) in our system of law, people are presumed innocent until proven guilty; and (5) we know that many members of the team, including some who were asked to provide DNA samples, did not attend the party.

As you can see, the sentences which the LAX team parent neglected to quote directly contradict the characterization he tries to give to the statement. You cannot say that Brodhead turned his back on his students, threw them to the wolves, and all but declared them to be guilty of rape when he has expressly stated that the facts are not yet established, there are very different versions of the central events, the players are innocent until proven guilty, and we know that many of them were not even at the party. The question then arises why did the LAX team parent fail to refer to the third, fourth, and fifth sentences of paragraph one? The answer is that he wanted to stick it to Brodhead, and he decided that the best way to do this was to mischaracterize his statement through selective quotation. I hope this helps to clarify the issue.

You are certainly entitled to your opinion that the lacrosse parent's quotation was "selective." I do not share it. And the lacrosse parent's quote is certainly not a factual error.

I discussed the issue of Brodhead's imbalanced remarks in considerably greater detail in the following two posts, which I invite you to read:http://durhamwonderland.blogspot.com/2006/08/dissembling.htmlhttp://durhamwonderland.blogspot.com/2006/08/brodhead-files_01.html

And if you want a concrete example of how a college president might act in such an instance to express support for the due process rights of his or her students, I would invite you to examine the recent actions of the Yale administration after the arrest of several Yale football and hockey players.

With all due respect, I think your last post is a little vague. Let me try to make this very simple. How can you say that with his statement of March 25, President Brodhead all but declared the LAX players to be guilty of rape when the statement says that (1) the facts are not yet established; (2) there are very different versions of the central events; (3) no charges have been filed; (4) in our system of law, people are presumed innocent until proven guilty; and (5) we know that many members of the team, including some who were asked to provide DNA samples, did not attend the party?

Since you have not responded to my last post, I gather that you have decided to stonewall my questions regarding the selective quotation by the LAX team parent. In light of this, I will just be completely blunt. Any fool can see that the LAX team parent whose message is prominently featured on the September 15 main page of your website has intentionally distorted the statement issued by President Brodhead on March 25 and that he has done so for the express purpose of smearing Brodhead. The fact that the LAX team parent would intentionally distort the statement shows intellectual dishonesty on his part. The fact that you refuse to acknowledge the obvious and admit that the LAX team parent has distorted the statement shows intellectual dishonesty on your part.

This intellectual dishonesty together with the one-sided nature of the articles posted on your website and the countless numbers of one-sided and vituperative comments posted by your audience shows that this website is not engaged in objective analysis of the LAX situation but is instead serving merely as a cheering section for the LAX team. I gather that the LAX team parents are mad at Brodhead for canceling the LAX season and for refusing to meet with them when they thought they were entitled to a meeting and that they have decided to seek revenge by posting anonymous comments on your website to smear him. You are assisting them in this effort by allowing them to say anything they want about Brodhead and the Duke Administration, including things which do not stand up to analysis, like the distortion of his March 25 statement, and then stonewalling anyone who takes issue with the distortions. As a result, I will be giving your criticism of Brodhead and the Duke Administration all the respect it deserves, which is not a lot.

If you decide to change course and show some balance in the future, you might want to begin by posting an article which discusses the key role that the LAX players played in creating this mess. You could start by explaining to your audience that the mess began when the LAX players decided to hold a party at which alcohol was served to minors in violation of university policy and the laws of North Carolina and then invited a couple of strippers to come to the party to perform for them. You could then talk about how the party blew up in their faces and did enormous damage not only to them but also to Duke University, which had absolutely nothing to do with organizing the party. Then you could talk about how as adults, we are all responsible for our own actions and that in this case, maybe it is time for the LAX players to stand up and take responsibility for their actions rather than trying to blame everybody in the world for their problems other than themselves, which is what you are doing on this website. Of course, if you were to post such an article, you would no longer be pandering to the LAX team parents and their supporters, so I do not expect to see such an article on your website anytime soon.

The first line of your article states that Duke alumni tell you that they did not buy the administration's story that "we did just fine handling the lacrosse controversy." As you know, Duke has tens of thousands of alumni scattered all over the world. How many of those alumni did you speak with, and who were they, LAX team parents?

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review